Richter v. Mayor

It is not disputed that the assessment in suit, imposed by the trustees of the former village of Wakefield against the plaintiff’s property for the expense of constructing a sidewalk, was invalid in fact. The controversy turns upon the question wheth

The defendant’s argument for a dismissal of the complaint appears to proceed upon the theory that the assessment was void upon the record, for reasons distinct from those upon which the action is founded, and that an adjudication upon the merits should accordingly be denied. The argument is that all assessments imposed for sidewalk improvements under the general village law (Laws 1870, c. 291, tit. 3, § 4), as in force when this assessment was made, were invalid as matter of law, in that the act prescribed no form of notice to the owner of the property in front of whose premises the laying of the sidewalk was authorized, the assessment being imposed for the expense of the improvement, should the owner neglect or refuse to have the work done. It is claimed, therefore, that even had there been no trespass, and the sidewalk laid upon the highway, the assessment was void upon its face because of what is said to be an unconstitutional feature of the law regulating these assessments, but it appears to me that the contention is without force.

The statute in question could certainly be constitutionally enforced where the assessment was laid for the owner’s refusal to bear the necessary expense of this public improvement, since this refusal could only imply an attitude assumed after demand; hence after notice. Therefore every assessment imposed under this law could not be " said to be void, since the law itself would of necessity be upheld in such cases as had fallen within its constitutional provisions. Dillon v. Railroad Co., 19 Misc. Rep. 124 , 43 N. Y. Supp. 320 , and cases collated. The authorities cited for the defendant are not opposed to this view. In the case of People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185 , 31 N. Y. Supp. 592 , an assessment, imposed under provisions of a special charter, similar, with regard to the matter of notice, to the provisions of the village law, was declared void in a direct proceeding, upon certiorari, but after proof that no notice had been given the owner; and in New v. Village of New Rochelle, 91 Hun, 214 , 36 N. Y. Supp. 211 , it was held that the decision in the Spencer Case did not operate to render void all assessments levied under these particular provisions, but proceeded only upon the facts of the individual case. The remark of the court, in the New Case, that the assessment "was void upon the face of the proceedings,” is to be considered in the light of the nature of that action,

The invalidity of this assessment, therefore, cannot be predicated, on the absence of statutory authority for its existence, upon the record as a lien, prima facie, and the plaintiff is entitled to judgment upon the proof of facts, extraneous to the assessment roll, wherefrom the illegal character of the purported lien is made apparent. Tredwell v. City of Brooklyn, supra; Rogers v. Village of Sandy Hill, 14 Wkly. Dig. 45 . I think that the plaintiff should have costs of the action, notwithstanding the point made by the defendant that the assessment was imposed by the village trustees, then a body independent of the municipality. Ample notice was given the defendant of the plaintiff’s just demand that this assessment be canceled, and yet she has been put to the necessity of prosecuting her action to judgment, while the invalidity of the assessment has not been questioned as a matter of law or of fact. Judgment for plaintiff, with costs.